Frustration of Employment Contracts

Frustration of Contract - Ill health dismissals - if an employee is on long term sick leave can an employer simply dismiss as it would be impossible for that employee to perform their contractual obligations? Yes, however it comes with a risk. 

Normally, an employment contract comes to an immediate end under the law of frustration if the employee is imprisoned as he/she cannot physically perform their duties. However, long term illness requires very careful consideration. 

Under the Equality Act 2010, disability is a "protected characteristic". In plain English this simply means that you will need to consider whether reasonable adjustments need to be made to allow the employee to return to work. An employee on long term sick leave, for example longer than a year, may be disabled. If you terminated their employment on the grounds of frustration then you could face a claim for dismissal on grounds of disability discrimination. 

An added risk arises with employees who have more than 2 years' qualifying service (or 1 year for employees employed before 6th April 2012). If you are not successful in arguing frustration of employment contract in the tribunal then you may be left without a defence for unfair dismissal. It is an "all-or-nothing" approach.

You should always seek legal advice before taking action to avoid problems at a later stage. However, there are ways in which you can resolve a long-term sickness issue.

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